I am unable to agree with the majority opinion herein and respectfully dissent. The only error assigned is the giving of instruction 5, quoted in the majority opinion. I do not think that said instruction was erroneous. Accordingly, I would affirm.
As I read the majority opinion, it holds that instruction 5 *Page 799 is erroneous for three reasons, to wit: (1) a defendant may not invoke the no-eyewitness rule; (2) instruction 5 gives defendant the benefit of affirmative proof rather than a presumption; (3) the testimony of plaintiff and the physical facts render the no-eyewitness rule inapplicable herein. I disagree with all three propositions.
In the first place, the holding that the no-eyewitness rule is not available to a defendant is based upon a misconception of the rule. It is true that, ordinarily, the no-eyewitness rule is invoked by a plaintiff in connection with the issue of contributory negligence in an action for damages because of wrongful death of plaintiff's decedent. Accordingly, nearly every case that discusses the rule does so in connection with the issue of contributory negligence. However, the rule itself is based upon the fundamental principle that in any case, except one involving the doctrine of res ipsa loquitur, the party asserting negligence must prove it.
Negligence is not to be presumed from the occurrence of an accident; it must be proved. Gifford v. New Amsterdam Cas. Co.,216 Iowa 23, 25, 248 N.W. 235; Aita v. John Beno Co., 206 Iowa 1361, 1365, 222 N.W. 386, 61 A.L.R. 351; Orr v. Des Moines Elec. L. Co., 207 Iowa 1149, 1153, 222 N.W. 560; Reimer v. Musel,217 Iowa 377, 380, 251 N.W. 863; Cabrnosh v. Penick Ford, 218 Iowa 972, 252 N.W. 88; Bauer v. Reavell, 219 Iowa 1212, 1219, 260 N.W. 39, 43.
In the case last cited, we state:
"It is the settled doctrine that negligence is never presumed but must be proven as alleged."
This is the general rule in other jurisdictions as well. In 20 Am. Jur. 214, 215, section 217, it is stated:
"It is often declared that negligence is never presumed against either party to an action; on the contrary, the presumption exists that each was in the exercise of ordinary care."
Pursuant to the rule, courts have repeatedly announced that there is a presumption that the defendant as well as the plaintiff exercised reasonable care and was not negligent. Woolworth Co. v. Williams, 59 App. D.C. 347, 41 F.2d 970, 971; *Page 800 Miller v. Southern Pac. Co., 82 Utah 46, 21 P.2d 865, 878, 879, certiorari denied 290 U.S. 697, 54 S. Ct. 207, 78 L. Ed. 600; Parave v. Public Service Interstate Transp. Co., 109 N.J.L. 155,160 A. 375; Durning v. Hyman, 286 Pa. 376, 133 A. 568, 569, 53 A.L.R. 851. The statements contained in Vance v. Grohe, 223 Iowa 1109, 1117, 274 N.W. 902, 116 A.L.R. 332, and Swift Co. v. Holoubek, 60 Neb. 784, 84 N.W. 249, 253, which the majority opinion casts aside as dicta, are in accord with such pronouncements. See, also, Bennett v. Atchison T. S.F. Ry. Co.,191 Iowa 1333, 1337, 183 N.W. 424, 427, wherein we quote with approval from Looney v. Metropolitan R. Co., 200 U.S. 480, 26 S. Ct. 303, 50 L. Ed. 564, the statement: "`A presumption in the performance of duty attends the defendant, as well as the person killed.'"
The no-eyewitness rule is invoked, ordinarily, to aid a plaintiff in proving that his decedent was not guilty of contributory negligence. In the absence of any evidence on the issue, the presumption of due care makes out a prima facie showing. Brown v. West Riverside Coal Co., 143 Iowa 662, 120 N.W. 732, 28 L.R.A., N.S., 1260; Platter v. Minneapolis St. L. Ry. Co., 162 Iowa 142, 143 N.W. 992; Carpenter v. Loetscher-Jaeger Mfg. Co., 178 Iowa 320, 157 N.W. 938; Stukas v. Warfield-Pratt- Howell Co., 188 Iowa 878, 175 N.W. 81; Laudner v. James, 221 Iowa 863, 266 N.W. 15. However, if there are witnesses to every material fact on the issue of decedent's negligence, or the physical facts negative the possibility of due care on his part, the no-eyewitness rule does not apply. Spooner v. Wisecup,227 Iowa 768, 288 N.W. 894; Hittle v. Jones, 217 Iowa 598, 250 N.W. 689; Ames v. Waterloo C.F.R.T. Co., 120 Iowa 640, 95 N.W. 161.
I can see nothing about the no-eyewitness rule that sets it apart from other rules that are based on a presumption. If there is no evidence on the issue, the presumption obtains. If there is evidence from eyewitnesses or physical facts, the presumption may be overcome. Such is the fate of every rule based on a presumption. There is nothing about the rule that limits it to the issue of contributory negligence.
The case of In re Estate of Hill (Gaard v. Bank), 202 Iowa 1038, *Page 801 208 N.W. 334, 210 N.W. 241, involved an action by Gaard's Estate against Hill's Estate, arising out of an automobile accident in which both Gaard and Hill were killed. The first opinion, reported in 208 N.W. 334, squarely held that the no-eyewitness rule, if available to one decedent, was also available to the other. The supplemental opinion, reported in 210 N.W. 241, modified the original opinion, eliminated such statement and substituted a statement that, if the physical facts warranted a finding of negligence on the part of Hill, they also showed negligence on the part of Gaard, so that plaintiff failed to establish his case. I do not think that such opinion is subject to the interpretation of the majority herein, that the no-eyewitness rule is not available to a defendant's decedent.
In the case of Stephenson's Admx. v. Sharp's Exrs., 222 Ky. 496,1 S.W.2d 957, 959, 960, the facts were analogous to those in that of Hill's Estate, supra, and the court held that the presumption of due care applied to both decedents. Similarly, in Yarnell v. Kansas City Ft. S. M.R. Co., 113 Mo. 570, 579, 21 S.W. 1, 3, 18 L.R.A. 599, the court states:
"This record is utterly barren of any testimony showing or tending to show how or in what way Yarnell came to his unfortunate death. * * * It has been suggested that it will bepresumed that Yarnell was in the exercise of `due care.' This may be granted, but, while indulging this presumption, it must not be forgotten that everyone is presumed to properly acquit himself of his engagements and his duty. Lenox v. Harrison, 88 Mo. 491 and cases cited. And that carriers of passengers are by no means outside of the pale of this favorable presumption. So that the result is that one presumption rebuts and neutralizes the other, like the conjunction of an acid and an alkali."
The foregoing pronouncement is cited with approval in State ex rel. Missouri Pub. Util. Co. v. Cox, 298 Mo. 427, 250 S.W. 551, 552.
From the foregoing, it seems to me that, in a case where the estate of one deceased is made defendant and the issue is whether such decedent was negligent, if there are no witnesses, the no-eyewitness rule is just as much available to a defendant's *Page 802 decedent as to a plaintiff's decedent. The holding of the majority to the contrary seems to me to be clearly erroneous.
It is suggested by the majority as its second reason for holding that instruction 5 is erroneous, that giving the defendant the benefit of the no-eyewitness rule on an issue as to which he has no burden of proof gives him the benefit of evidence rather than a presumption. This theory is directly opposed to the cases above reviewed that hold that a defendant as well as a plaintiff is entitled to a presumption of due care. I find no case supporting the holding of the majority. The case of Owen Motor Freight Lines v. Russell's Admr., 260 Ky. 795,86 S.W.2d 708, 714, is directly contra, the court stating that the burden of proof has nothing to do with the application of the rule. The holding of the Kentucky court is in accord with the rule of a number of states which hold that the no-eyewitness rule is available to a plaintiff on the issue of contributory negligence even though the burden of proof as to that issue is on the defendant in such jurisdictions. See Marchetti v. Southern Pac. Co., 204 Cal. 679, 269 P. 529; Dunne v. Hines, 50 Cal. App. 345, 195 P. 276; Robbins v. Southern Pac. Co., 102 Cal. App. 744,283 P. 850; Holland v. Boston M.R.R. Co., 279 Mass. 342,181 N.E. 217; Sarna v. American B.M. Corp., 290 Mass. 340, 195 N.E. 328.
The instruction given herein is a correct statement of the no-eyewitness rule and is stated in language similar to that used by this court repeatedly in stating the rule. Dalton v. Chicago, R.I. P.R. Co., 104 Iowa 26, 28, 73 N.W. 349; Lunde v. Cudahy Pack. Co., 139 Iowa 688, 695, 117 N.W. 1063; Merchants T. S. Co. v. Chicago, R.I. P.R. Co., 170 Iowa 378, 392, 150 N.W. 720; Jenkins v. Hawkeye C.M. Assn., 147 Iowa 113, 118, 124 N.W. 199, 30 L.R.A., N.S., 1181; Arnold v. Douglas Co., 176 Iowa 405, 418, 155 N.W. 485; Lorimer v. Hutchinson Ice Cream Co., 216 Iowa 384, 390, 249 N.W. 220. I do not think that instruction 5 is in any way objectionable from the standpoint of giving undue benefit to the decedent's estate.
Turning to the third ground for reversal herein, I cannot agree with the majority holding that the testimony of plaintiff and the physical facts showed decedent to be guilty of negligence *Page 803 as a matter of law so that the no-eyewitness rule was not applicable herein.
It is true that plaintiff testified as a witness to the accident. He saw the decedent when plaintiff was about 150 feet from the lane. He does not pretend to testify to what decedent did thereafter until plaintiff was 4 feet from the lane. If decedent was negligent, his negligence occurred during the period of time when there is no testimony concerning his conduct. Because of the absence of testimony during that period of time, the no-eyewitness rule is applicable herein and instruction 5 was proper. Arnold v. Douglas Co., supra; Gray v. Chicago, R.I. P.R. Co., 160 Iowa 1, 15, 16, 139 N.W. 934; Laudner v. James, supra; Barrett v. Chicago, M. St. P.R. Co., 190 Iowa, 509, 519, 520, 175 N.W. 950, 180 N.W. 670.
By reason of the foregoing, I would affirm.